In a recent decision, O'Brien v. Port Authority of New York and New Jersey, 29 N.Y.3d 27(2017), a divided Court of Appeals stepped into a battle of the experts in a construction site accident case. Several articles have been written about this case. Contrary to the analysis of some defense counsel, this decision has not resulted in any new law on the scope of Labor Law §240(1). It is a decision narrowly limited to its facts, involving a worker who fell while descending a wet temporary external staircase in the rain. There were conflicting expert opinions as to whether there were structural deficiencies in the stairway, which made it unsuitable as a safety device, or whether it was a proper device which was just wet. The dissent opined that the fact that plaintiff fell down the slippery stairs was sufficient to establish a statutory violation. However, the majority found issues of fact raised by the experts as to whether this temporary external staircase, which did not collapse or break but may have only been wet, was an adequate safety device. There is no basis to attribute significance to the decision beyond its specific facts or to conclude, as certain defense counsel have, that experts should be retained by defendants in all cases involving §240(1) to examine scaffolds and ladders to provide opinions on the adequacy of the safety device.

Background

In O'Brien, plaintiff was a worker at the 1 World Trade Center site and responsible for the maintenance of welding equipment. At the time of his accident, he was descending a temporary exterior metal staircase from one work level to another. He testified at his deposition that this metal staircase was wet due to exposure to the elements, that his foot slipped off the tread of the top step and that he fell down the stairs. He further testified that the stairs were “steep, slippery and smooth on the edges.”Although his right hand was on the handrail, he could not maintain his grip because the handrail was wet. A co-worker confirmed that the stairway was wet. Plaintiff's expert opined that the stairs were worn-down, slippery, had diminished anti-slip properties and did not comply with established principles of construction safety. These contentions were used by plaintiff to support a cause of action under Labor Law §200, based upon the assertion that defendants had constructive notice of the dangers of this device. In opposition, defendants' expert opined that the temporary staircase complied with industry standards for indoor and outdoor use, and did not require further anti-skid protection.

Plaintiff alleged causes of action under Labor Law §200 (codification of common law duty to provide a safe work place); Labor Law §241(6) (predicated upon violations of the New York Industrial Code) and under Labor Law §240(1) for the failure to provide protection against elevation-related hazards. The resolution of these various causes of action ricocheted back and forth as the case proceeded through the courts and reached the Court of Appeals.

The Motion Court

Because of the dispute between the experts as to the condition of the temporary staircase, the trial court held there were issues of fact for trial under §200. Plaintiff also claimed a violation of §241(6) based upon defendants' violation of 12 NYCRR 23-1.7(d) for permitting a slipping hazard. Based upon the testimony of plaintiff and his co-worker, the motion court granted plaintiff's motion for summary judgment under §241(6).

With respect to the motion for summary judgment under §240(1), the trial court recognized that this statute may apply in cases involving falls from temporary stairwells at construction sites as the functional equivalent of falls from a ladder or scaffold. However, focusing on the factual disagreement between the experts, it determined there were issues of fact for trial as to whether this stairway provided proper protection. O'Brien, 2013 WL 3775539 (N.Y. County 2013).

The Appellate Division

The results were flipped in the Appellate Division, First Department, 131 A.D.3d 823(2015). The court reversed the finding of the motion court with respect to §240(1) and held,with one dissent, that plaintiff was entitled to summary judgment under §240(1). It recognized that a temporary staircase was a device under the statute and that falling down a temporary staircase was the type of elevation-related risk to which §240(1) applies. The court noted that it was irrelevant whether the temporary structure was a staircase, ramp, or passageway in that “it was a safety device that failed to afford him proper protection from a gravity-related risk.” In granting summary judgment, the court rejected any contention that issues of fact were raised by the experts, stating:

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